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Citizens United After 10 Years: More Speech, Better Democracy

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Citizens United After 10 Years: More Speech, Better Democracy Citizens United After 10 Years: More Speech, Better Democracy Scott Blackburn January 2020 On January 21, 2010, the Supreme Court struck down a federal law that prohibited corporations and labor unions from in- dependently voicing their support or opposition to federal candidates. That law, the Court said, violated those organizations’ First Amendment rights. In the succeeding ten years, the Court’s decision in Citizens United has engendered more discussion and disagreement among policymakers than perhaps any other case in recent history. With ten years and five election cycles of hindsight, this report examines what we can learn from the effects of Citizens United on American campaigns. I. Since Citizens United, Politics Is More Diverse and Political Change Is Rapid. One common prediction about Citizens United was that it would fundamentally distort our elections in favor of wealthy interests. As The New York Times wrote in their editorial following the decision, “With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century… If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.”1 But far from an era dominated by the wealthy, in the five election cycles since the de- It is impossible to ascribe cision, America has seen some of the most vibrant, diverse, and rapid political change in a generation. We have seen the re-election of the first black President, Barack any one electoral outcome Obama, a Democrat, over business favorite Mitt Romney. This was followed by a solely to Citizens United, celebrity outsider Republican in Donald Trump beating consummate Washington but the prevalence of new insider Hillary Clinton. The House of Representatives has seen similar rapid change voices in the political with both Republicans and Democrats taking the House in populist waves. This is arena since the decision perhaps best exemplified by major establishment power brokers Eric Cantor and Joe Crowley being bested by political neophytes and outsiders David Brat and Alexan- is undeniable. dria Ocasio-Cortez, respectively. It is impossible to ascribe any one electoral outcome solely to Citizens United, but the prevalence of new voices in the politi- cal arena since the decision is undeniable. At the very least, it seems highly unlikely that if powerful moneyed interests were putting their finger on the scale of elections to a greater degree post-Citizens United, these are the outcomes they would have sought. II. Incumbents and Challengers Have Both Benefited From Super PAC Support – but the Support Helps Challengers More. Supporters of Citizens United, far from believing the decision hindered democratic ideals, regarded it as a boon to democracy by allowing political outsiders to more easily challenge incumbents and the status quo. As famed First Amendment attorney Floyd Abrams put it, “We want, for example, more Gene McCarthys and Ross Perots and individuals to come upon the scene and have a chance to build a war chest and go on out and try to reform the country as they think best.”2 The elections since the decision have certainly seen a significant amount of new blood in Washington, many of whom benefited from super 1 Editorial, “The Court’s Blow to Democracy,” The New York Times. Retrieved on January 14, 2020. Available at: https://www.nytimes.com/2010/01/22/ opinion/22fri1.html (January 21, 2010). 2 James Taranto, “The Media and Corporate Free Speech,” The Wall Street Journal. Retrieved on January 13, 2020. Available at: http://www.jamestaranto. com/abrams.htm (January 30, 2010). PAC spending that was not tied to the traditional levers of party Congress Total Freshmen power. But incumbent politicians and insiders also quickly learned 107th Congress (2001–2003) 49 to take advantage of this new tool of campaigning. 108th Congress (2003–2005) 56 The best example of this is perhaps Right to Rise, the super PAC set up by supporters of Jeb Bush heading into the 2016 Republican 109th Congress (2005–2007) 42 primary. That group spent over $120 million peppering primary 110th Congress (2007–2009) 64 states with pro-Bush ads. But while Right to Rise bought a lot of ads, it failed to convince many voters. Super PACs supporting new- 111th Congress (2009–2011) 65 comers have had better success, as groups like Independent USA PAC 3 and Women Vote!4 were able to give key support to previ- Citizens United ously unknown candidates. 112th Congress (2011–2013) 99 All told, the five election cycles since Citizens United saw an aver- 113th Congress (2013–2015) 82 age of 79 freshmen members of Congress. The five cycles prior to the decision saw just 55.5 114th Congress (2015–2017) 62 All told, the five election cycles since Citizens 115th Congress (2017–2019) 65 United saw an average of 79 freshmen 116th Congress (2019–2021) 89 members of Congress. The five cycles prior to the decision saw just 55. III. For-Profit Corporations Are Not Big Spenders in Campaigns. In the immediate wake of Citizens United, the main prediction from those opposed to the decision concerned corporate spending in elections. As one commentator put it, “today’s decision does far more than simply provide Fortune 500 compa- nies with a massive megaphone to blast their political views to the masses; it also empowers them to drown out any voices that disagree with them.”6 Simply put, this has not happened. Corporate political spending continues to be dwarfed by spending from other traditional sources. In the four cycles since the decision,7 for-profit corporate political spending has averaged around 1% of spending from all sources. The following chart shows total campaign contributions8 (to any entity – candidates, political parties, standard PACs, super PACs, and other groups.) (in blue), total contributions to independent groups from any source (including individuals, PACs, corporations, and unions) (in orange), and for-profit corporate contributions to independent groups (predominantly super PACs) (in red).9 3 See “Independence USA PAC,” Center for Responsive Politics. Retrieved on January 13, 2020. Available at: https://www.opensecrets.org/pacs/index- pend.php?strID=C00532705&cycle=2018 (June 20, 2019). 4 See “Women Vote!,” Center for Responsive Politics. Retrieved on January 13, 2020. Available at: https://www.opensecrets.org/pacs/indexpend. php?strID=C00473918&cycle=2018 (June 20, 2019). 5 “First-Term Members of the House of Representatives,” U.S. House of Representatives. Retrieved on January 13, 2020. Available at: https://history. house.gov/Institution/First-Term/First-Term-Numbers/. For data on the 116th Congress, see “Membership of the 116th Congress: A Profile,” Congres- sional Research Service. Retrieved on January 13, 2020. Available at: https://fas.org/sgp/crs/misc/R45583.pdf (January 14, 2020). 6 Ian Millhiser, “Citizens United Decision: ‘A Rejection Of The Common Sense Of The American People’,” ThinkProgress. Retrieved on January 13, 2020. Available at: https://thinkprogress.org/citizens-united-decision-a-rejection-of-the-common-sense-of-the-american-people-d7b83c583b1b/ (January 21, 2010). 7 This excludes the 2010 election cycle, which occurred both before and after Citizens United. Comparable data on corporate contributions for that cycle was not readily available. 8 “Cost of Election,” Center for Responsive Politics. Retrieved on January 13, 2020. Available at: https://www.opensecrets.org/overview/cost. php?display=T&infl=N. 9 Karl Evers-Hillstrom, “In hyperpartisan political environment, major corporations stay away from controversial super PACs,” Center for Responsive Politics. Retrieved on January 13, 2020. Available at: https://www.opensecrets.org/news/2019/04/major-corporations-stay-away-from-controversial- pacs20/ (April 12, 2019). Effects of Citizens United on Campaign Spending (in millions) Total Independent Groups Corporations Even the roughly 1% of corporate contributions to super PACs each cycle likely overstates things, at least in the common understanding of Fortune 500 companies. As the Sunlight Foundation reported in 2014, “As far as we can tell, one thing the [200 largest corporations] did not do, for the most part, was take advantage of the new opportunities to spend on politics that the Citizens United decision afforded them. The 200 corporate donors gave just $3 million to super PACs, with the bulk of that amount a single $2.5 million donation from Chevron” to one particular super PAC.10 In 2018, The Washington Post looked at the top 50 donors for that election cycle and found similar results: just four were nonpersons, and they gave just 3% of the total donations from that group.11 Of those four corporate donors, two were nontraditional. One was a group that advocates on behalf of hospitals, and one was the company of longtime political activist Ross Perot. No matter how you slice it, Citizens United has not led to a flood of corporate money in our elections. IV. Money Still Can’t “Buy” an Election. Despite a near constant drumbeat from some politicians and activist groups, in the post-Citizens United era, money cannot and does not buy elections. In fact, this is conventional wisdom among most experts. As University of Missouri professor Jeff Milyo wrote: [T]here is something of a scholarly consensus . stand[ing] in stark contrast to the popular wisdom so often echoed by pundits, politicians and reform advocates that elections are essentially for sale to the highest bidder (spender). Decades of social science research consistently reveal a far more limited role for campaign spending.12 10 Bill Allison and Sarah Harkins, “Fixed Fortunes: Biggest corporate political interests spend billions, get trillions,” Sunlight Foundation. Retrieved on January 13, 2020. Available at: https://sunlightfoundation.com/2014/11/17/fixed-fortunes-biggest-corporate-political-interests-spend-billions-get- trillions/ (November 17, 2014).
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